Summary of Capital Building Maintenance Services, Inc.- Decision
After Reconsideration

Employer's employees, doing maintenance work on a building exterior, used a
motorized platform suspended from a davit system on the roof and worked from
the platform at elevations of 8 to 12 feet. Employer was cited for a general
violation of section 3292(c)(5) for not obtaining the building owner's assurance
that the davit system would withstand the load before using it. The safety order
applies to systems installed after 1993. Documents indicating that the system
was checked in 1996 created the inference it was installed after 1993. Employer
did not overcome that inference. The Board invoked Evidence Code section 413
and found that the system was installed after 1993. Section 3292(c)(5) itself
does not say that the assurance has to be in writing, but the other subsection
referring to the same assurance requires that it be in writing. Hence, the oral
assurance that Employer received from the building owner was insufficient. Employer
was cited under section 3299(c)(3) because there were knots along the length
of the independent safety lines used by employees on the platform. The safety
order says that the fall protection system must comply with Article 6. Appendix
C, section I says knots are not permitted along the length or at the ends of
the lanyards or safety lines. Appendix C, section III, says that if a knot is
used to tie-off a lanyard or a safety line, a stronger one should be used to
compensate for the weakening effect of the knot. The Board upholds the violation,
finding that Appendix C, section I, prohibiting knots at the ends and along
the length controls. Knots were along the length. Appendix C, sec. III, is a
non-mandatory guideline and applies only to knots used to secure a lanyard or
safety line to an anchorage point. The violation was serious. The knots were
in plain view. Employer could have known of the violation by exercising reasonable
diligence. Employees tied safety lines off to the HVAC windscreen posts. Anchorages
must be capable of supporting 5,400 lbs per employee. The Division cited Employer
under section 3291(f)(2)(C) on the theory that the windscreen posts did not
meet that requirement but it did not test their strength or otherwise prove
the posts were inadequate. The appeal was granted.